On Thursday’s edition of the Political Gabfest, Emily Bazelon, John Dickerson, and David Plotz discussed the arguments before the Supreme Court on Wednesday in Hawaii v. Trump, the case concerning what’s known as the Muslim ban. The excerpt from the show below has been edited and condensed for clarity.
David Plotz: Emily, what are the key legal issues in the case, both statutory and constitutional?
Emily Bazelon: This is about whether the president had the power to issue this kind of sweeping, indefinite ban, so it’s very much a case about separation of powers and presidential authority and the limits thereof, especially in the immigration arena. The relevant statute here is the Immigration and Nationality Act, which, on the one hand, allows the executive branch to suspend the entry of a class of aliens—I really hate that word for immigrants, but that’s the legal term—if the president finds that their entry into the United States be detrimental to the interests of the United States.
There is another part of this law—which we call the INA for short—and that part says that the government may not discriminate on the basis of nationality or religion, and so there is this question of which clause gets priority here in looking at the Trump travel ban. Then, of course, the all-important (in my view) subtext for this is Trump’s promises of a Muslim ban during the campaign. And then more importantly, there are the things Trump has said in office about wanting to keep Muslims out of the country, tweeting virulently anti-Muslim videos, and this sense we have that a kind of red meat to the base about Muslims and Muslim immigrants is truly what’s fueling this ban. Especially because, although it’s true that this particular order was much more organized, it’s still not clear what the government’s national security rationale is for choosing these particular countries and then having such a blanket policy against admitting their residents.
Plotz: The conservative justices certainly found a lot to chew on. They, for example, were very big on the point that: How long do we have to hold the president’s statements against him? How long do the things he says on the campaign have any bearing on what he does as president? Or is there basically a break, and he gets a clean, fresh start? Even if he has demonstrated some animus as president, does he get a break as long as his Cabinet and people in his administration have legitimate reason to think this ban will have a beneficial effect on national security? I think that’s one big thing that they focused on.
Bazelon: I thought that Neal Katyal, who was arguing for the state of Hawaii, and the other challengers of the ban had a really good answer to that, which was like, Well, the president could disclaim these statements he’d made. One of the conservative justices said something like, OK, well, if he disclaimed it, then two days later could he issue the travel ban order? Katyal said yes.
This is why I find this case so infuriating. Trump is getting to have it both ways. He both gets to be this anti-Muslim president who is signaling all these things to his base, and he gets to have all the trappings of regular presidential authority, where he gets to pretend that this is about national security. That point that Katyal made about not disclaiming is like the perfect way to capture that. All he has to do is be like, “No, I renounce those views. Now I’m doing this for national security reasons,” but he hasn’t done that.
Plotz: One of the other points that the justices made is that if this is a Muslim ban, it’s a pretty bad Muslim ban, [because] a very small number of countries that are majority Muslim are affected. Only 8 percent of Muslims in the world live in those countries, so therefore it’s unreasonable to think of it as a Muslim ban. And it also encompasses North Korea and Venezuela—
John Dickerson: Well, they were tacked on later.
Bazelon: Did you guys find that point convincing, that way of framing the question?
Plotz: Which way?
Bazelon: This was Justice [Samuel] Alito’s big point. If you were trying to ban Muslims, you would go ban all the Muslims from Saudi Arabia, allies of ours. We would never do that.
Plotz: Right. I’m sure that this has no real national security justification. They haven’t come up with anything credible. They went back knowing that they had to come up with a justification, and they manufactured something, which I don’t even think they’ve ever made public, but they’ve just sort of said, We have a finding that this will benefit national security, and no one knows what it is, and we’re supposed to just accept it.
On the other hand, I’m pretty troubled by the idea that the courts are going to tell the president and tell the administration they’re going to go second-guess findings that an administration is going to make. I mean, with this administration, it’s less troubling, but I just don’t like it as a precedent. I’m really troubled by Congress’ failure to be involved here. This is an area where Congress could very easily come in and clarify and tell the president or pass laws that say, “Here is what we want you to do or not want you to do.” Of course Congress is unwilling to do it, and it gives the executive enormous amount of latitude to make decisions like this.
Absent legislative action, I don’t think that what the Trump administration is doing is out of bounds. I think it’s completely immoral and criminal—wrong-headed, not criminal. I think it’s completely immoral and wrong-headed, but the solution is basically political, which is that you vote them out of office if you think it’s wrong. I don’t think that what they’re doing, on its face, goes against any laws of the country or that Trump is completely out of bounds. I just think it’s wrong.
Dickerson: Did the court raise that issue? Because, obviously, the court pays attention to whether the president is overstepping his bounds in the White House and defending this. We all remember the slightly amusing way in which Stephen Miller defended it, which is that on issues of perceived national security importance, no one anywhere in any court or in Congress has a right to ever question the president, which is obviously not the way it goes. But did the courts wrestle with that idea of whether the president was overstepping his bounds?
Bazelon: Yes. I think in some ways it was framed more in the first way David put it, which is, Would the court be overstepping its bounds to question the president’s authority?
The more abstract, 30,000-foot view you take of this case, the better it is for Trump, because then you’re talking about these lofty principles of not just presidential power, but the authority the president has to protect the country. Yet we know here we don’t have any public record of real findings about why the government thinks that restricting travel and immigration to this extent from these countries is really necessary, and we’re being asked essentially to take it on faith. To me, the idea that the Supreme Court couldn’t find some narrow way to say, “Wait a second. This president, in this instance, has gone too far in light of this shadow of anti-Muslim prejudice and also this continued lack of real public evidence that this is necessary.” [It] just seems like the court could find its way to writing that opinion if it wanted to.
Plotz: Your 30,000-foot point, Emily, is a really good one, and when you get into the specifics of what’s actually happening, it’s so dire. We know the moral wrong we’re committing. There have been 44 Syrian refugees admitted into the United States since October of the last, what is that, six months? Only 11 in 2018. There are hundreds of thousands, even millions of Syrians, the overwhelming majority of whom are people who are simply victims of one of the worst wars of modern history and who have no recourse and would be perfectly good contributors to American society, and even if they’re not that good contributors to American society, they are people in terrible suffering and need. The idea that we, as a nation, cannot welcome them in significant numbers is disgusting.
Also, we’ve seen this huge drop in tourism. We’re seeing an enormous drop in applications for student visas. The closing off of America by the Trump administration—partly through bureaucratic channels and policy measures, but also through their vile, vile rhetoric toward people who aren’t American—is a problem here. That’s what people need to go out and vote on. I guess I think that we have a system where there’s enormous latitude for a president to make decisions about things, and I would rather have Congress making law to restrain the president or the people restraining the president by voting in a new president, than I would having courts step in every time people are upset about something.
Bazelon: Fair enough, although I don’t think this is like every time people are upset about something. The other thing I feel like we need to mention is Korematsu. We have this stain on the Supreme Court and on the presidency because of Franklin Roosevelt in the order to detain people of Japanese descent during World War II. The Supreme Court signed off on that in the name of presidential authority and national security. It’s this completely discredited, horrifying precedent that has never been formally overruled but that we all want to think we understand was immoral and is supposed to be part of America’s past, not its present. There is this small irony here: Katyal, who argued for Hawaii and the challengers, used to be the acting solicitor general under Barack Obama, and when he was in that role, he issued a statement acknowledging [Korematsu] is a stain on America’s past, and that hovers over the court here, whether the justices like it or not.
Plotz: I want to make one final point: There is one place where I think legal intervention is certainly justified, which is that even under the terms of the ban, there’s supposed to be a notion of waivers, that certain refugees under certain circumstances ought to be allowed to get waivers, and that that decision can be made by the State Department on a case-by-case basis. What’s clearly happening is that those waivers are not being granted, that it’s basically blanket denials, so that effectively we are completely banning people with just a minuscule number of exceptions.
My point is that if in fact the government has set up a process and is not fulfilling that process, then that seems to me a moment for legal intervention and action if they are not abiding by the terms of their own policy, which I don’t think they are.
Bazelon: We should just stand by saying it seemed clear from oral argument that the Supreme Court is going to allow the Trump administration to have this ban—that all the arguments we’ve been making, the unsettling arguments, did not seem to be winning the day for the five conservative justices—so that is a likely outcome.